FSM SUPREME COURT TRIAL DIVISION

Cite as John v. Chuuk Public Utility Corp., 15 FSM Intrm. 169 (Chk. 2007)

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SINISA JOHN, on behalf of her children and as

the surviving spouse of the late Ronny John,

Plaintiff,

vs.

CHUUK PUBLIC UTILITY CORPORATION and

GRAND PACIFIC INSURANCE LTD.,

Defendants.

CIVIL ACTION NO. 2006-1024

ORDER DENYING MOTION TO DISMISS

Dennis K. Yamase

Associate Justice

Decided:  July 2, 2007

APPEARANCES:

For the Plaintiff:         Frank Casiano, trial counselor

                                  Tino Donre, Esq., supervising attorney

                                  Micronesian Legal Services Corporation

                                  P.O. Box D

                                  Weno, Chuuk   FM   96942
 

For the Defendant:   Joses Gallen, Esq.

          (CPUC)           Chuuk Attorney General

                                 Office of the Chuuk Attorney General

                                  P.O. Box 189

                                  Weno, Chuuk   FM   96942

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HEADNOTES

Civil Procedure ) Dismissal

      When reviewing a Rule 12(b) motion to dismiss for failure to state a claim, a court must assume that the facts alleged in the pleading are true, and view them in the light most favorable to the claimant. A Rule 12(b) motion to dismiss cannot be granted unless it appears to a certainty that no relief could be granted under any state of facts that could be proven in support of the claim. John v. Chuuk Public Utility Corp., 15 FSM Intrm. 169, 171 (Chk. 2007).

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Constitutional Law ) Case or Dispute ) Standing; Insurance

      An insurance policy beneficiary has standing to sue for unpaid insurance policy benefits. John v. Chuuk Public Utility Corp., 15 FSM Intrm. 169, 171 (Chk. 2007).

Jurisdiction ) Personal

      Personal jurisdiction is the courtís power to bring a person into its adjudicative process. A court always has personal jurisdiction over a plaintiff because, by filing a case, the plaintiff has consented to the courtís jurisdiction over her person. John v. Chuuk Public Utility Corp., 15 FSM Intrm. 169, 171 (Chk. 2007).

Statutes of Limitations

      The statute of limitations for an action by a decedentís estate does not apply when the plaintiff is not alleging that she represents the estate, but alleges that she is an insurance policy beneficiary. John v. Chuuk Public Utility Corp., 15 FSM Intrm. 169, 171 (Chk. 2007).

Domestic Relations ) Probate; Insurance

      Only if a life insurance policy had no designated or named beneficiary, would the policy benefits be payable to his estate to be distributed through probate to his heirs or devisees. John v. Chuuk Public Utility Corp., 15 FSM Intrm. 169, 171 (Chk. 2007).

Insurance; Statutes of Limitations

      When the plaintiff alleges that she is the third-party beneficiary of an insurance contract, the six-year statute of limitations for breach of contract generally applies. John v. Chuuk Public Utility Corp., 15 FSM Intrm. 169, 171 (Chk. 2007).

Civil Procedure ) Dismissal; Civil Procedure ) Pleadings; Statutes of Limitations

      The statute of limitations is generally an affirmative defense that may be pled in the answer. A statute of limitations defense is not one of the enumerated defenses under Rule 12(b), but rather is one of the specific defenses named in Rule 8(c), where a party must set forth affirmatively in the answer, the statute of limitations and any other matter constituting an avoidance or affirmative defense. The statute of limitations defense may, however, be raised by a Rule 12(b)(6) motion, or, if affidavits are filed with the motion, by a Rule 56 summary judgment motion, as well as by answer, but if there is a question of fact about the defenseís existence, the issue then cannot be determined on affidavits, and must be raised in the answer. John v. Chuuk Public Utility Corp., 15 FSM Intrm. 169, 171-72 (Chk. 2007).

Civil Procedure ) Dismissal; Statutes of Limitations

      If a statutory remedy provides as a condition precedent to enforce the remedy that it must be started within a prescribed time, it is jurisdictional and the statute of limitations may be raised in a Rule 12(b)(6) motion to dismiss. John v. Chuuk Public Utility Corp., 15 FSM Intrm. 169, 172 (Chk. 2007).

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COURTíS OPINION

DENNIS YAMASE, Associate Justice:

      On May 29, 2007, the defendant, Chuuk Public Utility Corporation (CPUC), filed its Motion to Dismiss.  On June 22, 2007, the plaintiff, Sinisa John, filed her opposition.  The motion is denied. The courtís reasons follow.

I.

      Sinisa Johnís complaint alleges that her husband, Ronny John, was employed by CPUC and that because of his CPUC employment he was covered by a group life insurance policy that would pay her,

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the beneficiary, $18,000 upon his death.  He died on November 18, 2004.  The insurance company did not pay, and this lawsuit followed.

II.

      CPUC moves to dismiss, under Rule 12(b), the complaint against it on the grounds that the plaintiff has no standing to sue; that the action is barred by the statute of limitations; and that it fails to state a claim upon which relief can be granted.  CPUC contends that Sinisa John does not have standing to sue because she has not been appointed as the administratrix of her husbandís estate.  CPUC contends that the statute of limitations bars this lawsuit because the statute, 6 TTC 304, requires that an action by a decedentís estate must be brought within two years after the estateís representative was appointed or took possession of the decedentís property and that Sinisa John took possession of the decedentís property in November 2004. CPUC also contends that the complaint fails to state a claim since Sinisa John has not been appointed administratrix and the lawsuit was filed over two years after Ronny John died.

       When reviewing a Rule 12(b) motion to dismiss for failure to state a claim, a court must assume that the facts alleged in the pleading are true, and view them in the light most favorable to the claimant.  FSM v. Kana Maru No. 1, 14 FSM Intrm. 368, 372 (Chk. 2006).  A Rule 12(b) motion to dismiss cannot be granted unless it appears to a certainty that no relief could be granted under any state of facts that could be proven in support of the claim.  Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586 (App. 1996).

      Sinisa John alleges that she is the beneficiary of Ronny Johnís life insurance policy and that that policy was believed to be in force when Ronny John died.  For the purpose of this motion, the court must accept these allegations as true.  An insurance policy beneficiary has standing to sue for unpaid insurance policy benefits.  See, e.g., Santiago Rolon v. Chase Manhattan Bank, 912 F. Supp. 19, 22 (D.P.R. 1996); Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D. Ill. 1996).  Sinisa John therefore has standing to sue.

      CPUC also asserts that the court does not have personal jurisdiction over Sinisa John.  This assertion is summarily rejected.  CPUC misunderstands the concept of personal jurisdiction.  Personal jurisdiction is the "courtís power to bring a person into its adjudicative process."  Blackís Law Dictionary 857 (7th ed. 1999).  A court always has personal jurisdiction over a plaintiff because, by filing a case, the plaintiff has consented to the courtís jurisdiction over her person. Moore v. Rohm & Haas Co., 446 F.3d 643, 645-46 (6th Cir. 2006) ("a plaintiff consents to personal jurisdiction by virtue of bringing suit in the given forum").

       The statute-of-limitations ground may also be summarily rejected because Sinisa John is not alleging that she represents Ronny Johnís estate.  She alleges that she is an insurance policy beneficiary.  Only if Ronny Johnís life insurance policy had no designated or named beneficiary, would the policy benefits be payable to his estate to be distributed through probate to his heirs or devisees.  See, e.g., Metropolitan Life Ins. Co. v. Groue, 117 So. 2d 833, 836 (La. Ct. App. 1960); Grand Grove of La. v. Rolland, 184 So. 724, 729 (La. Ct. App. 1938).  The complaint does not allege that. It alleges that she is the beneficiary.  Since she alleges that she is the third-party beneficiary of an insurance contract, the six-year statute of limitations for breach of contract, 6 TTC 305, generally applies.  See Zion v. Nakayama, 13 FSM Intrm. 310, 314 (Chk. 2005).

      The statute of limitations is generally an affirmative defense that may be pled in the answer. FSM Civ. R. 8(c).  A statute of limitations defense is not one of the enumerated defenses under Rule 12(b), but rather is one of the specific defenses named in Rule 8(c), where a party must set forth

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affirmatively in the answer, the statute of limitations and any other matter constituting an avoidance or affirmative defense.  Segal v. National Fisheries Corp., 11 FSM Intrm. 340, 342 (Kos. 2003).  The statute of limitations defense may, however, be raised by a Rule 12(b)(6) motion, or, if affidavits are filed with the motion, by a Rule 56 summary judgment motion, as well as by answer, Shuman v. Sherman, 356 F. Supp. 911, 912 n.4 (D. Md. 1973), but if there is a question of fact about the defenseís existence, the issue then cannot be determined on affidavits, Competitive Assocs., Inc. v. Fantastic Fudge, Inc., 58 F.R.D. 121, 123 (S.D.N.Y. 1973), and must be raised in the answer. Also, if a statutory remedy provides as a condition precedent to enforce the remedy that it must be started within a prescribed time, it is jurisdictional and the statute of limitations may be raised in a Rule 12(b)(6) motion to dismiss. Callahan v. Chesapeake & O. Rwy., 40 F. Supp. 353, 354 (E.D. Ky. 1941).

III.

      Accordingly, CPUCís motion to dismiss is denied. CPUC shall file its answer within ten days of entry of this order.  FSM Civ. R. 12(a).

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